Opinion
CV 29907/18
09-12-2019
Andrea E. SACHTSCHALE, Plaintiff, v. Helene GREECE, Defendant.
ANDREA SACHTSCHALE, Plaintiff Pro Se GOLDFARB & SANDERCOCK, LLP, Attorneys for Defendant, By: Adam D. Goldfarb, Esq. & Elizabeth Sandercock, Esq., 110 East 59th Street - 22nd Fl, New York, New York 10022, 212.509.0440
ANDREA SACHTSCHALE, Plaintiff Pro Se
GOLDFARB & SANDERCOCK, LLP, Attorneys for Defendant, By: Adam D. Goldfarb, Esq. & Elizabeth Sandercock, Esq., 110 East 59th Street - 22nd Fl, New York, New York 10022, 212.509.0440
Sabrina B. Kraus, J.
BACKGROUND
Plaintiff commenced this action seeking a judgment in the amount of $3350.00 based on defendant's failure to return her security deposit for 465 West 23rd Street, Unit 4B, New York, New York (Subject Premises). The action was commenced pursuant to a summons and endorsed complaint filed December 12, 2018.
Defendant appeared by counsel, on February 22, 2019, and filed an answer asserting five affirmative defenses and a counterclaim. The affirmative defenses included failure to state a cause of action, that plaintiff rented out the Subject Premises for short term rentals, and that plaintiff had an excessive amount of occupants during her tenancy, which caused damages to the Subject Premises beyond normal wear and tear. The counterclaim seeks entry of judgment against plaintiff in the amount of $4150.00 for alleged damages to the Subject Premises.
The action was initially on the court's calendar on March 26, 2019. It was adjourned to September 12, 2019 for trial. On September 12, 2019, the court held a bench trial and reserved decision.
FINDING OF FACTS
The Subject Premises is cooperative apartment. Defendant is the proprietary lessee. Defendant bought the Subject Premises in the late 1990s and lived there for approximately 10 years before moving to New Orleans. After she moved, defendant began to rent out the Subject Premises.
Plaintiff rented the Subject Premises from defendant, pursuant to an initial written lease agreement date June 23, 2009 (Ex 1). At that time, plaintiff gave defendant a security deposit in the amount of $3350.00 in accordance with the lease. Plaintiff remained a tenant in the Subject Premises for the next nine years, pursuant to a series of additional written leases (Exs 1B - 1F).
Defendant would visit the Subject Premises, during this period, once or twice a year to inspect the conditions of the Subject Premises.
In the spring of 2018, after the expiration of plaintiff's last lease, defendant offered her a renewal at a rate plaintiff found too high and plaintiff decide not to renew and to move out.
On at least three occasions, defendant expressed in writing to plaintiff how happy she was to have plaintiff as a tenant and what good care plaintiff took of the Subject Premises (Ex 4A - 4C). Two of these were emails in June 2018, when defendant requested that plaintiff do certain work to the Subject Premises and stated she anticipated giving plaintiff back her security deposit at the walk through.
In June 2018, plaintiff gave defendant's real estate agents access to do a photo shoot of the Subject Premises. The photos taken show that the Subject Premises was in very good condition (Ex 2A- 2E). The kitchen cabinets are depicted in Exhibit 2B and also appear to be in good condition.
The parties scheduled a walk through of the Subject Premises on July 31, 2018. Plaintiff was unable to appear on said date, and sent Rowann Gilman (RG), a friend and neighbor to the walk through instead. RG testified at the trial that the Subject Premises was in good condition on the day of the walk through with no damages. The court found RG to be a credible witness.
Plaintiff did the work that defendant requested prior to the move out and provided defendant with a written check list and photos (Ex 5) which were used by RG and defendant on the date of the walk through.
The parties had arranged to meet at the management office for the Subject Premises on August 1, 2018. On that date, plaintiff turned in her key and building identification and defendant gave plaintiff a written statement saying she would not be returning plaintiff's security deposit because she believed that plaintiff had been using the Subject Premises for short term rentals (Ex 6).
Defendant hired a contractor to do work in the kitchen after plaintiff vacated. Defendant paid the contractor $3800 for the work done (Ex E & Ex 3A). The work was primarily to refurbish the kitchen cabinets but also included painting and plastering, cleaning bathroom ventilation, caulking and cleaning around the stove.
Defendant testified that she had the Subject Premises painted one time during plaintiff's nine year tenancy and had also replaced the oven and refrigerator during the tenancy.
Plaintiff testified that the kitchen had not been renovated since the 1980s, this testimony was not contradicted by defendant.
Defendant testified that in the last year of plaintiff's occupancy plaintiff had 11 visitors that defendant believes were short term rentals.
DISCUSSION
It is well settled that a tenant's security deposit is the property of the person making the deposit and must be returned at the conclusion of the tenancy, unless there is proof that the tenant caused damage to the Subject Premises beyond normal wear and tear (see General Obligations Law § 7-103 ; Chery v. Richards 64 Misc 3d 148(A) ).
The court finds that the preponderance of credible evidence established at trial that there was no damage to the Subject Premises beyond normal wear and tear, and that in fact defendant decided not to return plaintiff's security deposit because she was angry that plaintiff used the Subject Premises during the last year of her tenancy for short term rentals.
Whether or not plaintiff rented the Subject Premises during the last year of her occupancy is largely irrelevant to this Court's determination .
The Court found both plaintiff and RG to be credible witnesses. Their credible testimony regarding the condition of the Subject Premises was supported by photographs submitted in evidence. Defendant submitted no photograph depicting any alleged damage. Defendant's basis for withholding the deposit was clearly set forth in her August 1, 2018 letter (Ex 6) which in no way makes any reference to any alleged damages to the Subject Premises.
Based on the foregoing the clerk is directed to enter judgment in favor of plaintiff against defendant in the amount of $3,350.00 plus costs and interest from September 1, 2018, and defendant's counterclaim is dismissed with prejudice.
This constitutes the decision and order of this court.